Blog # 40 MEDICINE NEEDS A GPS

Privacy is the personal right to limit the content of our communications to people of our own choosing, it is an invaluable feature of our American liberty.

Intrusion into private communications is illegal (exception, legally authorized wire- taps in the area of terrorism and criminal activities). The fact that this important protection on behalf of the individual citizen applies to government is laudable, especially when contrasted with many foreign countries. The difficult contest between the citizens’s right of privacy and the government’s responsibility to maintain security, often needs Court resolution and is dealt with on a case- by- case basis.

Our vital right of privacy also applies to other areas. For example, New York Civil Rights Law, section 50 et seq. forbids the use of a photo or other likeness of a person, in trade or advertising, unless the individual to be protected, executes a valid, written waiver

On the other hand, government, happily, does not have an analogous right to privacy. Unless the information sought has been legitimately classified as “Confidential,” any citizen may deliver a valid demand for information under the Freedom of Information Act (FOIL) to the government or other body or agency.  The purpose has to be proper, and the individual, a legitimate interest in the matter

Communications with lawyers, doctors and priests are also protected, as “privileged,” if the information was given in the context and as part of the professional relationship. This right, again, protects the individual, who alone may personally waive the right by a valid signed writing or by conduct unequivocally amounting to his waiver of privacy.

Important protection is granted by a Statute mandating privacy in hospital, clinic or doctor’s office settings, concerning the personal health data of the patient (HIPAA).

However, for many years, there has been a uniform “wrong way Corrigan” application and perhaps an insufficient understanding of the health privacy law (HIPAA) by the medical profession.

In order to be admitted to a hospital, clinic or seen by a doctor, we are all (illogically) obliged to sign an Agreement that we are aware of the privacy afforded (us) under the privacy Statute, and, usually, and equally useless, a statement that the Agreement was, indeed, signed by us. The Admitting Nurse then advises the new patient sternly, that these documents will be placed in his “Permanent File.” What errant nonsense!

The protection of privacy is the patient’s protection against disclosure by the hospital or doctor. It may be that the medical professional and its expensive legal counsel need a GPS to correct the direction of HIPAA rights. What legal purpose does it serve to have the party whose rights are to be protected, sign such an agreement? If a signed writing were necessary (and it is not), it is the Hospital or doctor who have the obligation to keep patient’s data confidential.

By illustration, If an unconscious patient, alone, and unable to sign such a document, was brought into the emergency room, is not the Hospital nevertheless restricted by HIPAA from disclosure?

A prospective patient surrenders his body and future life to a hospital or medical professional, necessarily, with supreme trust and reliance upon the assumption that he will be treated by competent, rational and trustworthy stewards; the cockeyed application of HIPAA, does nothing to increase his confidence.

p.

Published by

plinyblogcom

Retired from the practice of law'; former Editor in Chief of Law Review; Phi Beta Kappa; Poet. Literature Student and enthusiast.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s